Dawson v Dawson
[2018] FCCA 1813
•5 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAWSON v DAWSON & ANOR | [2018] FCCA 1813 |
| Catchwords: ADMINISTRATIVE LAW – Administrative tribunals – Administrative Appeals Tribunal (Cth) – Appeals to Federal Court – Questions of law. FAMILY LAW AND CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – Children – Child support legislation – Judicial review of decisions. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss.33(1)(c), 43(1), 44(1), 98H(4) |
| Cases cited: Child Support & Crowley and Anor [2015] FamCAFC 76 Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Oldfield v Secretary, Department of Primary Industry (1988) 78 ALR 718 Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29 |
| Applicant: | MR DAWSON |
| First Respondent: | MS DAWSON |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRG 818 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 19 April 2017 |
| Date of Last Submission: | 19 April 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 5 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Greinke |
| Solicitors for the Applicant: | Morgan Conley |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application filed on 27 July, 2016 is dismissed.
The applicant pay the second respondent’s costs of and incidental to the application fixed in the sum of $6,948.00.
IT IS NOTED that publication of this judgment under the pseudonym Dawson v Dawson & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 818 of 2016
| MR DAWSON |
Applicant
And
| MS DAWSON |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
This is an appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal given on 27 June, 2016 that concerns child support issues between the applicant and the first respondent. The Tribunal’s decision affirmed a decision of an objections officer to reject an objection made by the applicant to certain determinations made by the second respondent about the applicant’s income for child support purposes.
The applicant argues that the appeal should succeed and the decision of the Tribunal set aside because:
a)the Tribunal relied on material not in evidence before it but apparently obtained by the Tribunal from internet searches conducted by the Tribunal member;
b)this material was not relevant or probative;
c)an inference drawn by the Tribunal and critical to its decision was not reasonably open on the evidence before it;
d)this inference was also contrary to the other findings of the Tribunal; and
e)the Tribunal was required to exclude the profits of a company called Company A Pty Ltd from its consideration by operation of s.117(7A)(b)(i) of the Child Support (Assessment) Act 1989 but failed to do so.
The first respondent did not appear in these proceedings. The second respondent appeared and opposes the appeal. In summary, the second respondent submits:
a)the grounds of the notice of appeal fail to state or identify any question of law and in the absence of an identified question of law, the appeal must fail;
b)the grounds of review impermissibly invite merits review of the decision of the Tribunal; and
c)in any event, no error of law has been demonstrated or is apparent in the decision of the Tribunal.
Background
The applicant and the first respondent are the divorced parents of two children, one born in 1995 and the other born in 1997. The first respondent had 100% care of the children following the parties’ separation. Both children are now adults.
There were administrative assessments of child support in place for the periods 1 October, 2011 to 31 October, 2012, 1 November, 2012 to 31 December, 2013 and 1 January, 2014 to 2 February, 2015. For each of those periods the applicant’s child support income amount (a necessary element of the calculation of the applicant’s child support liability) was set at $248,309 by way of a departure decision made by the second respondent on 20 February, 2012.
The applicant applied for a departure order from those assessments on 4 December, 2014 but his departure application was refused on 12 January, 2015.
On 8 October, 2015 the applicant obtained an order of this Court allowing the second respondent to consider departing from the administrative assessments from 25 June, 2012 onwards, subject to an extension of time being granted by the second respondent to allow an objection to be lodged by the applicant against the January, 2015 departure decision. Whilst the applicant was granted that extension of time, the objection was ultimately disallowed on 10 November, 2015.
By his departure application made on 4 December, 2015 the applicant sought departure from the three assessments I have identified above on the basis that they did not correctly reflect his income, property and financial resources at the times covered by those assessments. In particular, the applicant sought to demonstrate that his income for child support purposes was overstated and did not reflect his actual income.
The Tribunal conducted a hearing by telephone on 27 May, 2016. The first respondent appeared at the hearing. The second respondent did not appear.
The Tribunal’s decision addressed the following three questions:
a)whether one or more of the grounds for departure referred to in s.117(2) of the Assessment Act existed;
b)in the event that it did, whether it would be just and equitable as regards the children, the applicant and the first respondent to make a departure determination; and
c)and if so, whether it would be otherwise proper to make a departure determination.
The ground specified in s.117(2) of the Assessment Act upon which the applicant relied before the Tribunal was that specified in s.117(2)(c)(ia). That subsection is in the following terms:
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(ia) because of the income, property and financial resources of either parent; ....
The Tribunal considered the evidence before it in relation to the income and financial resources of the applicant. It found the applicant’s adjusted taxable income for the following years as follows:
a)2010/11 $22,925
b)2011/12 $23,399
c)2012/13 $50,497
d)2013/14 $51,121
e)2014/15 $46,332
The Tribunal found, however, that until 2012 the applicant was the sole director and shareholder of a company called Company A Pty Ltd. Company A was involved in (business omitted). In relation to this business, the Tribunal found:
a)Company A Pty Ltd was registered on 27 March, 2000;
b)from its registration until 30 April, 2012 the applicant was the company’s sole director and shareholder;
c)on 20 February, 2012 an objections officer of the Department varied the applicant’s adjusted taxable income for child support purposes to $248,309 for the period 31 August, 2011 until the end of the child support case on 2 February, 2015 as I have indicated above;
d)on 1 June, 2012 the applicant’s partner, Ms T, was appointed the sole director of Company A and all of the applicant’s shares in Company A were also transferred to Ms T.
In the objection decision challenged by the applicant on his application to the Tribunal (which has led to the present application), the objections officer determined that based upon the 2009/10 financial statements for Company A (which were the most recent then available) and the applicant’s 2009/10 personal income, his adjusted taxable income for child support purposes should be the sum of his personal adjusted taxable income of $27,079 plus Company A’s profit of $221,230. It was after that decision that the applicant transferred his directorship and shareholding in Company A to his partner Ms T.
He argued in the Tribunal that given that he no longer had any interest in Company A and he was an employee only of the company, his child support income amount ought to be calculated according to his personal income only. That was, obviously enough, significantly less than the amount determined by the objections officer in February, 2012.
The applicant and Ms T gave evidence to the Tribunal that in 2012 Company A required financial backing to continue its operations and Ms T provided that financial backing. However, in return she required control of the company.
The applicant gave a written statement (not sworn) as follows:
21. In 2012 it became apparent to me that I was not able to continue to run a profitable business, to guarantee the equipment finance of Company A’s equipment. I also formed the view that I could not obtain finance for further equipment or for finance extensions. I recall my obligation as part of Company A’s existing finance obligations was to report any adverse change of circumstances. At the time I recall that the assessment of 20 February 2012 would be considered an adverse change and I would need to disclose it.
22. I recall at the time, a discussion with Mr Pitman, my Solicitor, whereby he advised that if I did not resign as director and shareholder of Company A I would be required to disclose my financial position, including the assessment made by the Child Support Agency.
23. I asked Ms T for financial assistance.
24. I recall I asked Ms T to guarantee the Company A business and thereby expose her personal assets which she had accumulated both before we met and after.
25. I essentially considered myself as being Insolvent.
26. I recall Ms T was not prepared to do so without full transparency of Company A’s books of account and control of the Company A business.
27. I recall I concluded that such control was only possible if she took over the company with all liabilities.
28. As such I made the decision that I would transfer my shares for a nominal amount given that the debts associated with Company A would essentially render it valueless, and cease as a director.
29. I resigned as Director on 20 April 2012 and on 1 June 2012 Ms T consented to becoming a Director of Company A ... I would from that point be only an employee of Company A.
Ms T gave the following written evidence (not sworn):
5. In early 2012, the Applicant and I discussed the future of Company A and his concern for the future of the business. The Applicant told me that he didn’t think he would be able to obtain further equipment finance and the current debts and liabilities of Company A were going to put it in further jeopardy.
6. The Applicant asked for my assistance to guarantee the debts and future obligations of Company A.
7. I told the Applicant that if I was going to use my personal assets I would require control of Company A. The Applicant agreed to transfer his shares to me and resign as director. The transfer fee was nominal as Company A had no equity in its assets and goodwill was likely to be non-existent given the time the company had existed and the extent of the liabilities and debts associated with it.
8. On or around 30 April 2012 the Applicant resigned as director of Company A, sold his shares to me and I was appointed the director.
9. I signed the Consent to Act as Director for Company A on 1 June 2012 and from that point forward have been the sole director and shareholder of the company.
At the hearing of the review application conducted by the second respondent, the applicant was subjected to questioning from the Tribunal. Ms T was not. It is clear from the Tribunal’s questions and the Tribunal’s reasons for decision that the Tribunal member had obtained some information independently of the parties to the application. I have before me a transcript of the Tribunal’s hearing. It reveals that at the commencement of the proceedings both the applicant and the first respondent were sworn as witnesses would ordinarily be sworn when giving evidence. There were also bundles of documents identified and marked as exhibits.
The tribunal member asked the applicant about the documents he had sourced (at T19):
Mr King:Yes. All right. Okay. All right. Can I then just, I guess, ask you a couple of other things. And this is, I guess, from some – just some internet searches that I’ve done recently. So the – on the Company A website, the contact number, or one of the two, is your mobile number.
[Applicant]: Yes.
Mr King:So are you the contact for the business still?
[Applicant]: Yes. Yes, I take a lot of the initial calls. Yes.
Mr King:Yes. Okay. All right. Now, on your LinkedIn profile, you’re still up as a – said to be a director of the company from 2000 till present. Is there any reason you haven’t changed that if you haven’t been a director for the last four years?
[Applicant]: No. No, there’s no reason at all.
Mr King:Okay.
[Applicant]: I’m not very active on that.
Mr King:Sure. No, I understand. That and not everybody updates them regularly. So I can understand that.
[Applicant]: ..... website again, like that – I’m pretty sure that’s way out of date and needs ..... some of the pages won’t even open up. So that’s sort 5 of – you know.
Mr King: Yes.
[Applicant]: That’s where - - -
Mr King: Yes. That’s true. All right. Just a couple of other, I guess, articles I found on there. One is from the (omitted) Newspaper from 2015 entitled (omitted) a Town A Business.
[Applicant]: Yes.
Mr King: Which you may recall. Now, this refers to you as the owner of Company A and that you went and secured a contract with Company B and so forth and so on. And it discusses why that happened.
[Applicant]: Yes.
Mr King: Do you recall speaking to them? So as I said, that records you as being the owner of the business still. That’s what’s quoted there. Do you know why that would be in there? Was that what you told the (omitted) Newspaper, do you recall? Or - - -
[Applicant]: There was a couple of things that they had – they were looking for a ..... you know, everyone’s feeling the pinch at the moment. You know, work’s going ..... they’re after a good feel story. And I questioned it. There’s a few things wrong in there. And they put – apparently they had – I did speak to them. Some of that information is correct, some isn’t. The one about the director, they – she said – the lady that – I could get her name. She said they got some of that information also from the internet.
Mr King: Okay.
[Applicant]: So it wasn’t said by me. It was information they had obtained.
Mr King: All right. But you don’t recall telling them that you were the owner of the company still?
[Applicant]: No.
45 Mr King: No.
[Applicant]: No.
Mr King: All right. Okay. No, I understand that. And the other article is from the (article omitted). It seems to be a publication they put out. So this is from 2015, a story on yourself called (“omitted”), Company A. And again, it says:
Mr W is the owner/manager of Company A.
..... you know, the history of it. You started with one piece of equipment and moved in:
Mr W and … Ms T have also taken over a small Business… “Business” and have started a Business, “Business”.
And it goes on about talking to you and then what we spoke about before, the (business omitted). And so again, that talks about you as still the owner/operator of that business, as well as, in fact, operating and being part of the Business P with Ms T. What do you say to that article? Do you recall speaking to this publication and - - -
[Applicant]: I haven’t actually seen the publication.
Mr King: Yes.
[Applicant]: The accountant spoke to us, whether we would be interested in, you know, having a ..... there basically. And she – yeah, it’s been ..... accountant and she – yeah. She – I agreed to it. To be honest ..... article. So I’m not – I’m not even aware of what’s in there.
Mr King: All right. Okay.
[Applicant]: Both ..... I don’t know.
Mr King: No. All right. Okay. And I guess just lastly, on your income tax returns which have been provided, you still note yourself – I think it’s an executive director, executive director, as your profession. Now, seemingly - - -
[Applicant]: One second.
Mr King: - - - legally you - - -
[Applicant]: What’s that, I’m sorry?
Mr King: In your income tax returns you’re noted as an executive director. That’s your occupation. Do you know why that’s recorded on each of your income tax returns given the evidence and, I guess, the evidence on the company records that you haven’t been a director since 2012?
[Applicant]: Yes. No, it does. Yes. Ms T looks after all that side of it. I wasn’t aware of that, no.
Mr King: So does that as well as what you’ve said about Ms T talking to this publication and so forth indicate that she may consider you at least a joint venturer in the company and the companies that she owns?
[Applicant]: No. It’s – you know, like it’s – there’s definitely a separate line in the sand as far as how we operate. I don’t feel like that at all.
Of this evidence, the Tribunal said:
27. [The Applicant’s] LinkedIn profile states he has been a Director of Company A since 2000. Ms T's LinkedIn profile states she is a Director of Company A and has been a partner with Company A since 2001.
28. An article in (omitted) newspaper in Town A, on 2015, states:
Twenty-five new jobs have been created by a Town A business through diversifying and breaking into new industries.
When Cyclone devastated Town B, [the Applicant]- owner of Company A - saw potential.
He secured a contract with Company B that will keep his employees in a job for at least the next 12 months, five days a week, 24 hours a day.
Since Company B began the Town B operation brought to Town A for export as (businesses omitted).
For [the Applicant], the opportunity to break into a new industry has saved his business from the economic downturn that has hit companies hard.
Winning the contract for Company B allowed him to hire staff over the past three months - leaving him with more 50 local employees.
“This has really opened the door for us into the (business omitted) industry,” [the Applicant] said.
‘We were really starting to feel the downturn before.
“But now we have work for at least 12 months and hopefully longer.”
Company B CEO Mr B said business in the Town B area had already started and the company plans to have (businesses omitted) by June next year.
29. An article in the 2015 newsletter of the (omitted business) Group states:
[The Applicant] is the owner/manager of Town A based (omitted) company, “Company A”.
Starting out as owner-operator with one piece of plant, [the Applicant’s] business has grown employing over 50 local people. In that time, Company A has diversified and now offers (employment omitted) and more.
[The Applicant] and his partner Ms T have also taken over a small Business P on the outskirts of Town A, “Business P”. They have also started Business, “Business”
30. The tribunal notes that in other newspaper articles Ms T is referred to as the owner of Business P.
31. The mobile telephone contact number on Company A’s website is that of [the Applicant]. The contact details for Business P on the internet are Ms T’s email address.
32. The tribunal accepts [the Applicant’s] evidence that in early 2012 he formed the view that Company A required further financial backing to continue operating as it was. The tribunal also accepts that Ms T provided that financial backing in return for having legal control of the business transferred to her, by way of her sole directorship and shareholding of Company A .
33. However the tribunal does not accept that [the Applicant] continued to work for Company A from that time as a mere employee. He has clearly been more than that as evidenced by the written articles set out above and the fact [the Applicant] remains the public contact for Company A. This is unsurprising given the tribunal finds it unlikely [the Applicant] would just cease operating a business, for no valuable consideration, that made a profit of nearly $1,000,000 in 2011/12 and be satisfied with earning an income of only about $50,000 per annum from that time.
34. On balance the tribunal has concluded that since 2012 Company A has been a joint enterprise between Ms T and [the Applicant]. Consequently the tribunal finds that the wages recorded as having been paid to [the Applicant] by Company A since that time do not appropriately reflect his contribution to the profits which Company A has recorded.
35. Whilst it may have been financially beneficial for the couple for [the Applicant] to be paid a small wage from Company A and for Ms T to receive far greater remuneration, the tribunal does not accept it is appropriate to assess [the Applicant’s] income and financial circumstances on that basis for child support purposes.
The Tribunal found that the applicant was more than “a mere employee” of Company A and remained as the public contact for Company A. It found that Company A was a joint enterprise between the applicant and Ms T from 2012 and Company A’s profits for:
a)2011 /12 were $968,457;
b)2012/13 were $1,490,361;
c)2013/2014 were $2,014,421; and
d)2014/15 were $242,712.
The Tribunal found the applicant’s adjusted taxable income of $248,309 for the periods 25 June, 2012 to 2 February, 2015 represented about 25% of the profit of Company A in 2011/12, 16% of profit in 2012/13, 12% of profit in 2013/14 and all of the profit in 2014/15.
Consideration
This Court’s jurisdiction is only enlivened by a question of law properly raised on the appeal. Ordinarily, the notice of appeal must set out with precision the question or questions of law sought to be agitated on the appeal. A precise formulation of the question or question of law before the Court “ensures the merits of a case are dealt with, not by the Court, but by the Tribunal, a “distribution of function [which] is critical to the correct operation of the administrative review process”: Child Support & Crowley and Anor [2015] FamCAFC 76 at [22]-[24].
The Notice of Appeal contains five purported questions of law:
1. Whether the newspaper articles and matters referred to at paragraphs [28] to [31] of the reasons were in evidence before the Tribunal, were relevant or probative.
2. Whether the Tribunal contravened s 39 of the Administrative Appeals Tribunal Act 1975 by relying of material not available for inspection to the parties.
3. Whether the inference at [34] was not reasonably open, irrational, illogical, and contrary to the findings of the Tribunal at paragraphs [23] and [32].
4. Whether s 117(7A)(b)(i) of the Child Support (Assessment) Act 1989 required the Tribunal to exclude the profits of Company A Pty Ltd.
5. Whether the Tribunal erred at [37] by determining the applicant's earning capacity was greater than his taxable income without considering the matters in s 117(7B).
The Notice of Appeal purports to raise five questions of law. At the commencement of his submissions, questions numbered two and five in the Notice of Appeal were expressly abandoned. Counsel for the applicant submitted that the Notice of Appeal raised “effectively three questions of law”. The first is the question of whether the Tribunal member could use the material that he purported to rely upon (the information he obtained from the internet and the print media articles) as primary evidence of the facts asserted in them. Secondly, whether that material, even if it was to become part of the record or purported to be tendered as evidence ought to have been accepted by the Tribunal as evidence. Thirdly, whether the material facts and finding provide a basis for drawing the inference of a joint enterprise between the applicant and Ms T. The applicant, by his counsel, delivered written submissions, which were directed to those questions rather than those set out in the Notice of Appeal.
I will deal with each suggested questions of law set out in the Notice of Appeal seriatim.
Question 1:
This question purports to direct attention to two matters, I think. The first is whether the newspaper articles and LinkedIn profile obtained by the Tribunal member were in “evidence” before the Tribunal. The second aspect of this question concerns the relevance and probity of that material to the findings that the Tribunal made. These two matters were described by counsel for the applicant as two of the three matters at the heart of this appeal.
The Tribunal is not bound by the rules of evidence and may obtain any material that it considers relevant to its decision. As the second respondent points out, the Tribunal could exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision (by virtue of s.43(1) of the AAT Act). Section 98H(4) of the Assessment Act (Cth) provided the Registrar (the original decision maker) with the power to carry out any hearing and any inquiry or investigation as the Registrar thinks fit without being bound by any rules of evidence. Quite independently of that section, the Tribunal was not bound by the rules of evidence and was empowered to “inform itself on any matter in such manner as it thinks appropriate”: s.33(1)(c) of the AAT Act.
To the extent that the applicant cavils with the Tribunal member obtaining information by his own researches, the appeal cannot succeed. If the question of law is: Can the Tribunal obtain information and evidence on its own account relevant to an application before it? The answer must unequivocally be “yes”.
The applicant argues that the material that the Tribunal found for itself did not become part of the “record” of the Tribunal because the material did not become an exhibit or exhibits in the proceedings. The applicant argues that the material (the results of the LinkedIn profile search for the applicant and the two print media articles) were not “tendered into evidence” by either party or by the Tribunal. By reason of those matters the applicant argues the Tribunal fell into error.
But there are two answers to these arguments.
First, the Tribunal is not required to keep a record of its proceedings at all: Oldfield v Secretary, Department of Primary Industry (1988) 78 ALR 718 at 721. Thus, if the Tribunal has failed to keep a record of its proceedings by not receiving into evidence the relevant material by marking the documents in which that material was contained as exhibits, the Tribunal has not breached any legal obligation that would have required it to do so.
Second, “the procedures whereby superior courts of record resolve civil litigation (and the rules of evidence applicable in such litigation) cannot automatically be transposed to the sphere of administrative decision-making where the tasks entrusted to the making of such decisions and the procedures to be followed may be very different.”: Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at [60]. Whilst a great many cases in this area of law talk of the “evidence” before the Tribunal, it is important to bear in mind the Tribunal’s nature and function. In Sullivan v Civil Aviation Safety Authority, the plurality (Flick and Perry JJ) pointed out that (my emphasis):
[61]. Any unquestioning analogy between administrative and judicial processes is to be shunned: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282. Brennan CJ, Toohey, McHugh and Gummow JJ there relevantly observed:
… Submissions were made at the hearing of the appeal as to the correct decision-making process which it would have been permissible for the delegates to adopt. These submissions were misguided. They draw too closely upon analogies in the conduct and determination of civil litigation.
Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term “balance of probabilities” played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term “evidence” as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance.
Similarly, in Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 the plurality (Flick and Rangiah JJ) said at [64]:
As a general proposition, administrative decision-making and decision-making by administrative tribunals is not adversarial and past attempts to blur the distinction between adversarial and administrative decision-making have vigorously been rejected: e.g., the procedures employed by administrative tribunals differ greatly from those employed in superior courts: Saunders v Commissioner of Taxation (Cth) (1988) 15 ALD 353 at 358. Northrop J there observed:
Viewed in this light, it is not surprising that the procedures of the Tribunal differ greatly from court proceedings. For example, there is no provision for the filing of pleadings nor for discovery or inspection of documents. Nor is the Tribunal bound by the rules of evidence. Provision is made for there to be “parties” to the proceedings (s 30) but in a reference such as this the parties are not adversaries in the strict sense, and any argument they present constitutes material which assists the Tribunal in deciding what decision should be made. The decision of the Tribunal is not in the nature of a judgment for or against a particular party. …The Tribunal is in the shoes of the Commissioner and may use any material put before it in reaching its decision …
Having regard to the twin propositions that the Tribunal is not required to keep a record of its proceedings and in any event it is inappropriate to equate processes in the Tribunal with the conduct of judicial proceedings, it is of little assistance to suggest that the Internet material and the print media material was not “in evidence” before the Tribunal. It was plainly material that was before the Tribunal and about which it had knowledge.
An example from another jurisdiction illustrates the point. Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29 was a case involving a decision made by an investigative panel appointed by the Medial Practitioners Board of Victoria under the Medical Practice Act 1994 (Vic) about the conduct of a particular medical practitioner. Section 52(1) of that Act provided that at a formal or informal hearing of a panel the procedure of the panel was in its discretion, the proceedings were to be conducted with as little formality and technicality as the requirements of the Act and the proper consideration of the matter permitted and that:
(c) the panel is not bound by the rules of evidence but may inform itself in any way it thinks fit; and
(d) a panel is bound by the rules of natural justice.
In the course of the panel’s hearing into the practitioner’s professional conduct, after a witness was questioned about the qualifications of an overseas surgeon whose expert opinion was relevant, the panel disclosed that, during a break in the hearing, it had entered the surgeon’s name in a search of the Internet using the Google search engine. Counsel for the medical practitioner objected to the panel’s independent resort to a Google search and foreshadowed an application that the panel should disqualify itself for ostensible bias. After an adjournment, the panel announced that its Google search had located a page purporting to record the surgeon’s qualifications. The respondent before the panel sought that the panel disqualify itself from further conduct of the proceeding on the grounds of apprehended bias. When that was refused, the medical practitioner applied for prerogatory relief against the panel from the Supreme Court of Victoria. That was refused and the medical practitioner appealed to the Court of Appeal.
After recording the relevant sections of the Medical Practice Act 1994 (Vic) and the submissions by senior counsel for the applicant medical practitioner, Maxwell P (with whom the other members of the Court agreed) said (footnotes omitted):
[26] To characterise the function of the panel as “judicial or quasi-judicial” does not assist the analysis. That characterisation was only ever relevant to deciding whether the body in question was obliged to accord natural justice, and it has long since ceased to be relevant to that issue. No such issue arises here, in any case, as the panel is under a statutory obligation to accord natural justice in the conduct of the formal hearing.
[27] In my view, there is nothing in the nature of the panel’s functions which would preclude it from making its own inquiries. On the contrary, the statute authorises the panel to do precisely that. As noted earlier, under s 52(1)(c) the panel “is not bound by rules of evidence but may inform itself in any way it thinks fit”. When asked by the court what content should be given to these words, senior counsel for Dr Weinstein submitted that they meant only that the panel was not bound by the rules of evidence, that is, they simply restated the first part of s 52(1)(c). Read in the context of the legislative scheme as a whole, he argued, the words “may inform itself in any way it thinks fit” should be regarded as redundant. This was said to be the necessary consequence of the panel’s obligation under s 49(a) being to “hear and determine the matter before it”. In discharging that duty, so the submission went, the panel could not “go off finding things”.
[28] Again, in my view, this submission fails. The words “may inform itself …” were plainly intended to have work to do. They have a meaning and a purpose quite distinct from the meaning and purpose of the words “not bound by rules of evidence”. Far from the phrase “may inform itself” being negated or neutralised by other provisions, these words play a necessary part in defining the character of the formal hearing which the panel conducts. For the purposes of “determining the matter before it”, the panel is authorised to “inform itself in any way it thinks fit”, subject always to the overriding obligation to accord procedural fairness.
The first aspect of the applicant’s first ground, and the first of the three cores issues in the appeal, must fail.
That the rules of evidence do not apply in proceedings in the Tribunal does not mean, however, that the Tribunal is bound to disregard them. It was argued by counsel for the applicant that the Tribunal was in error to take into account, in any way, the internet material or the print media material because of its hearsay nature and the likelihood that if it were attempted to be tendered in a Court its reception would be refused. However, the internet material (the information from the LinkedIn profile and the Company A website) was not clearly hearsay material. The LinkedIn information was information for which the applicant was personally responsible. He confirmed his telephone number was on the Company A website and did not suggest that it was on that website without his knowledge or authority. He confirmed that he received most of the telephone calls for Company A’s business. Whilst the applicant answered the Tribunal’s questions about that information and gave an explanation about why it might still appear on the internet, the Tribunal was not bound to accept those explanations.
The print media articles were plainly hearsay statements made by others reporting what the applicant had apparently said to them. As a matter of law, however, it is not wrong for the Tribunal to have regard to hearsay statements if the Tribunal determines it is appropriate to do so. That is to say, it is not a correct approach for the Tribunal to commence its consideration of material it thinks relevant to the issues at hand by determining whether that material should be “admitted” in the proceedings according to the rules of evidence.
To the extent that the applicant argues that the Tribunal was bound to decide the application before it by acting only on “admissible evidence”, the submission must be rejected. In addition to the passage from the plurality in Sullivan v Civil Aviation Safety Authority that I have set out above, Logan J observed at [16]:
In resolving justiciable controversies by a final judgement, a court is constrained to act on admissible evidence. An administrative decision-maker is not so constrained, as s 33(1)(c) of the AAT Act makes plain in respect of the Tribunal. However, an administrative decision-maker must act reasonably.
The applicant placed considerable reliance upon the decision of Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. At 256 his Honour said:
How are facts to be proved, and how is the sufficiency of proof to be determined when there are no rules of evidence binding upon either the Minister or the Tribunal? Section 33(1)(c) of the Administrative Appeals Tribunal Act provides that “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”. Although the Tribunal is governed by statute in the approach which it must take in assessing the evidence, and the Minister is not, I do not know that the statute confines the Tribunal to an approach which is more restricted than the approach which the Minister might properly take in assessing the same evidence.
The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that “this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force”, as Hughes CJ said in Consolidated Edison Co v National Labour Relations Board 305 US 197 at 229. To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J pointed out, though in a dissenting judgment, in R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256: “Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, ‘bound by any rules of evidence’. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer ‘substantial justice’.” That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock LJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488 said: “These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.”
Lord Denning MR in T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995 said much the same: “Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law” and he repeated that observation in Kavanagh v Chief Constable of Devon and Cornwall [1974] 1 QB 624 at 633. In the United States where considerable judicial attention has been given to fact finding by administrative tribunals (see Schwartz, Administrative Law, Boston, 1976 paras 115 et seq), substantially the same principle has been expressed. It was thought, at one time, that the Consolidated Edison judgment, supra, required that some legal proof had to be adduced, and that hearsay evidence alone could not support an adverse finding: see Schwartz, op cit, para 118. But in Richardson v Perales 402 US 389 at 407 the Consolidated Edison case, supra, was construed in this way: “The contrast the Chief Justice was drawing … was not with material that would be deemed formally inadmissible in judicial proceedings but with material ‘without a basis in evidence having rational probative force’. This was not a blanket rejection by the court of administrative reliance on hearsay irrespective of reliability and probative value. The opposite was the case.”
The majority judgments in Bott's case, supra , show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not. Starke J said at 249, 250: “The Appeal Tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent medical opinion, for instance, upon oath, and whether cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence, and is authorized to act according to substantial justice and the merits of the case.” It will be necessary to return to his Honour's reference to cross-examination, but for the moment the relevance of his Honour's judgment is to be found in the procedural flexibility which it assures to Tribunals which are statutorily freed from the rules of evidence, though required to act upon material which is logically probative. As the New South Wales Law Reform Commission has pointed out in its Report on the Rule against Hearsay, hearsay “has a wide scale of reliability” (1978 LRC 29 p 35), and there is no reason why logically probative hearsay should not be give credence. However, the logical weaknesses of hearsay evidence may make it too insubstantial, in some cases, to persuade the Tribunal of the truth of serious allegations.
On appeal, those remarks were endorsed in Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 689-690:
It would be both surprising and illogical if, in proceedings before a statutory tribunal involving an issue of the gravity of deportation of an established resident, the rules of natural justice were restricted to the procedural steps leading up to the making of a decision and were completely silent as to the basis upon which the decision itself might be made. There would be little point in the requirements of natural justice aimed at ensuring a fair hearing by such a tribunal if, in the outcome, the decision maker remained free to make an arbitrary decision. If decision, in such a case, were to be based on mere suspicion or speculation, the rules of procedure aimed at governing the process of making findings of material fact would involve no more than a futile illusion of fairness. I respectfully agree with the conclusion of Diplock LJ that it is an ordinary requirement of natural justice that a person bound to act judicially “base his decision” upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined. As has been mentioned, the requirements of natural justice may vary according to the nature of the inquiry (see, eg, Russell v Duke of Norfolk, supra, at 118) and that conclusion may not be of universal validity in that it may not, for example, apply in respect of some domestic forums. It is however of general validity in the case of a statutory tribunal which is bound to act judicially. Indeed, that conclusion, upon analysis and for present purposes, does little more than place in a proper context of the essential duty of fairness of a statutory tribunal bound to act judicially, the well-established principle of law that a decision of such a statutory tribunal must ordinarily be based on evidence which is reasonably capable of sustaining it (Allinson v General Council of Medical Education and Registration [1894] 1 QBD 750 at 760, 763, 766 ; Astridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 at 1326 ; and see per Stephen J, Ex parte Jordan (1898) XIX NSWLR 25 at 29 ). Implicit both in Diplock LJ's conclusion and in that well-established principle are both the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation. Those requirements, like all the ordinarily applicable rules of natural justice, may be modified or abolished by the express words or intendment of the legislation establishing the tribunal or conferring jurisdiction upon it (see, Commissioner of Police v Tanos (1958) 98 CLR 383 at 396 cited with approval by Lord Wilberforce in Wiseman v Borneman, supra, at 318; Twist v Randwick Municipal Council (1976) 12 ALR 379 at 382–3; Salemi v Minister for Immigration and Ethnic Affairs, supra, at 5, 19, 45, 51 ).
Examination of the provisions of the Administrative Appeals Tribunal Act 1975 discloses nothing which could be construed as suggesting that it was the legislative intent that the Tribunal should be free to disregard the requirements of natural justice in a case such as the present. In particular, there is nothing to suggest that it was the legislative intent that the Tribunal should, in a case such as the present, be free either of the requirement that its decision must, when relevant questions of fact are in issue, be based upon findings of material fact or the requirement that such findings of material fact be based on logically probative material. To the contrary, s 43(2) of the Act which requires the Tribunal to give its reasons in writing expressly provides that “those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. In reviewing the deportation order made against Pochi, the Tribunal was, as a matter of law, bound to observe those requirements.
The Tribunal was at liberty to search the applicant’s LinkedIn profile and obtain the two print media articles to which it referred. There is no substance in the applicant’s complaint about that matter.
The Internet material and the print media material was relevant because it bore on the applicant’s claims that he no longer had an ownership interest in Company A and was only an employee of that company from 2012. The LinkedIn profile contained a representation that the applicant was a director of the company from 2000 until present. That was relevant to his claim that he had no longer an ownership interest in Company A. So too, the newspaper article from the (omitted) purported to report statements of the applicant that were inconsistent with his claims that he no longer had an ownership interest in Company A. The article from (omitted) purported to do the same thing.
The weight to be given to the Internet material and the print media material was a matter for the Tribunal once its relevance is established. Although criticism could be made of the weight that might be attributed to that material given its nature, it was plainly relevant. If the Tribunal accepted that the applicant had reported to others that he was the owner of the business, it was entitled to treat that as an admission by the applicant as to ownership and the evidence could be logically probative of a finding about that matter. It could be used logically to show the existence or non-existence of facts relevant to the ultimate issue to be determined, namely whether in the special circumstances of the case, application of the provisions of the Assessment Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the applicant because of his income, property and financial resources.
Nor was there any denial of procedural fairness on the part of the Tribunal when it had recourse to the Internet material and the print media material to inform its findings. It is clear from the transcript of the Tribunal hearing that the Tribunal expressly discussed the two newspaper articles with the applicant during the hearing. The Tribunal put to the applicant that the (omitted) article referred to the applicant as the owner of the business who has secured a contract with Company B. The Tribunal also put to the applicant that the (omitted) article stated that the applicant was the “owner/manager” of Company A and operated Business P with Ms T.
The Tribunal asked the applicant if he wished to comment on both the articles and invited his representative before the Tribunal to make any submissions. Both the applicant and his representative made submissions in relation to the two articles. At the conclusion of the hearing, the applicant and his representative were given a further opportunity to add anything they wished orally and to provide any further written submissions after the hearing. The applicant’s representative said he would like the opportunity to provide any further written submissions within seven days.
The Tribunal records in its decision record that it deferred making a decision “pending the receipt of further written submissions on behalf of Mr W and Ms D”. It is not apparent that either party provided submissions to the Tribunal following the hearing.
The applicant was plainly afforded an opportunity to comment on the print media material and the Internet material. That information suggested that Mr W was the “owner” of Company A. He denied the statements that were attributed to him in the print media material and gave an explanation for the Internet material, but the Tribunal was not obliged to accept his explanations and denials.
The second aspect of ground one of the application, and the second core issue in the appeal, cannot succeed. The first question of law raised for consideration by the applicant does not demonstrate error on the part of the Tribunal.
Question 3:
Question 3 asks whether the inference at [34] of the Tribunal’s reasons was not reasonably open, or was irrational, illogical and contrary to the findings of the tribunal at paragraphs [23] and [32].
I have set those paragraphs out above.
The applicant argues that the finding at [34] was based upon the internet material and the print media material and that because that material “was not in evidence before the tribunal” there was therefore no evidence upon which the Tribunal could reach the conclusions that it did. The applicant argues in his submission filed on 31 March, 2017 that:
16. Not being tendered into evidence, this status of this material was limited to matters put to the Applicant during his cross-examination by the member. The Applicant did not, however, accept these propositions. Accordingly, there was no actual evidence supporting the assertions in this material.
But for the reasons set out above, these submissions cannot be accepted. The internet material and print media material was before the Tribunal.
The real issue as revealed by the applicant’s written and oral argument is whether that material constituted logically probative material upon which the Tribunal could draw the inference set out at paragraph [34] of its reasons. The findings that the applicant seeks to impugn in that paragraph are twofold and are found at [34] of the Tribunal’s decision. They are:
a)“On balance the tribunal has concluded that since 2012 Company A has been a joint enterprise between Ms T and Mr W.”; and
b)“Consequently the tribunal finds that the wages recorded as having been paid to Mr W by Company A since that time do not appropriately reflect his contribution to the profits which Company A has recorded.”
The Internet material and the print media material cannot be logically probative of the first finding of a joint enterprise. None of that material refers to the applicant carrying on the Company A business jointly with anyone else. The premise of the material is that the applicant is the owner of the business or of Company A. Nowhere is it suggested in that material that the applicant and Ms T operate the business together. However, the applicant did suggest at one point that he wanted to form a partnership with Ms T (my emphasis):
Mr King: I thought in the written submissions that had been made, what has been said is that the child support decision that was made that sets your income at$248,000 was, if you like, a catalyst for the change of ownership of the company. Not to reduce your income but it seems to say that it’s because this obviously provided a financial burden on you, an increased financial burden which, you know, led you to think that you – you needed this financial assistance for the business that you couldn’t offer. Do you just want to explain that a bit more about what role, if any Child Support’s decision to assess you on $248,000 played in the change of ownership pf the business some months later.
[Applicant]: Well, as I say, it sort of goes back. It really wasn’t that – to do with the Child Support decision. It was just – it was just me personally. I felt my ethics – that she was so tied up with the business, it just – it made sense to have her included. It was just wrong that she ..... you know, expecting – so not expecting but, you know, we were – we both discussed it and she was prepared to put so much into the company, it just made sense to me to form a partnership.
Mr King:All right. So I can understand that. But what, in fact, happened is that you sold – you transferred your shares to her under directorship. So she became the sole operator and owner of the business. So there wasn’t – legally there was no partnership. The ownership was transferred from you to her. So why was that seen to be necessary as opposed to, you know, jointly owning the business or a partnership or some other arrangement?
[Applicant]: Because she had put in so much money. It was just – without her, it wouldn’t – I wouldn’t have been able to keep going. So I just simply didn’t have – you know, it was more her than me at that stage.
Whilst the suggestion of a joint venture or joint enterprise was put to the applicant by the Tribunal member, apart from that passage extracted above, he never accepted the proposition so put to him. Moreover, the Tribunal did not purport to rely upon any acceptance or suggestion from the applicant that there was a joint enterprise with Ms T, howsoever described.
But the finding of a “joint enterprise” was not directly informed by the Internet material or the print media material. The finding of a joint enterprise followed the Tribunal setting out in its reasons the matters that informed that conclusion at [33]. Those matters were:
a)the refusal by the Tribunal to accept that the applicant continued to work for Company A from June, 2012 as a mere employee;
b)the Tribunal’s view that the applicant has clearly been more than a mere employee as evidenced by the print media and Internet articles;
c)the fact that the applicant remained the public contact for Company A; and
d)the Tribunal’s view that it was unlikely that the applicant would just cease operating a business, for no valuable consideration, that made a profit of nearly $1,000,000 in 2011/12 and be satisfied with earning an income of only about $50,000 per annum from that time.
The first three of those matters were sourced in the Internet material, the print media material and the answers given by the applicant during the Tribunal hearing about the work that he performed and the role he undertook for Company A. The Internet material and the print media material were logically probative, if accepted, of the first three matters set out above.
The applicant argues that the internet material and the print media material was hearsay evidence and that the Tribunal ought to have rejected the probity of that evidence. For the reasons I have set out above, this argument cannot be accepted either. The material was capable of supporting the findings made by the Tribunal that the applicant was more than a mere employee.
The critical finding of the Tribunal was that it was not appropriate to assess the applicant’s income and financial circumstances on the basis of him being a mere employee of Company A for child support purposes (at [35]). That critical finding was informed by the refusal of the Tribunal to accept that the applicant continued to work for Company A from 1 June, 2012 as a mere employee as evidenced by the Internet material, the print media material and the fact the applicant remained the public contact for Company A. The Tribunal also found that it was unlikely the applicant would just cease operating a business, for no valuable consideration, that made a profit of nearly $1,000,000 in 2011/12 and be satisfied with earning an income of only about $50,000 per annum from that time. Those findings were clearly open on the material before the Tribunal. Thus, even if the finding as to a joint enterprise was wrong, that finding did not play a critical part in the Tribunal’s reasoning on the ultimate issue.
No error is demonstrated by this question of law.
Question 4:
This question is expressed as follows: “Whether s.117(7A)(b)(i) of the Child Support (Assessment) Act1989 required the tribunal to exclude the profits of Company A Pty Ltd from its consideration”. Section 117(7A)(b)(i) of the Assessment Act provides:
(7A) In having regard to the income, property and financial resources of a parent of the child, the court must:
…
(b) disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them;
The answer to that question is plainly: “Yes, to the extent that the profits of Company A Pty Ltd were not part of the income, earning capacity, property or financial resources of the applicant and the Tribunal does not find that in the special circumstances of the case it is appropriate to have regard to them.”
Here, the tribunal found that the profits were part of the applicant’s financial resources, notwithstanding that Ms T was the sole director and shareholder of Company A. The Tribunal did not accept that the applicant continued to work for Company A from 2012 “as a mere employee”. It thought that it was unlikely that the applicant would just cease operating a business, for no valuable consideration, that made a profit of nearly $1,000,000 in 2011/12 and be satisfied with earning an income of only about $50,000 per annum from that time. It concluded that since 2012 Company A had been a “joint enterprise” between Ms T and the applicant.
The Tribunal also found that the “wages recorded as having been paid to [the applicant] by Company A since that time do not appropriately reflect his contribution to the profits which Company A has recorded.” The Tribunal reasoned:
36. The tax returns for Company A record profits of $968,457 in 2011 /12, $1,490,361 in 2012/13, $2,014,421 in 2013114 and $242,712 in 2014/15.
37. The administrative assessment is based on an adjusted taxable income of $248,309 for Mr W throughout the possible departure period 25 June 2012 to 2 February 2015. That income represents about 25% of the profit of Company A in 2011/12, 16% of the profit in 2012/13, 12% of the profit in 2013/14 and all of the profit for 2014/15. On average over those four years it represents about 21% of the profit of Company A.
38. The tribunal is not satisfied the administrative assessment for the period 25 June 2012 to 2 February 2015 is unjust or inequitable because of Mr W' income, property and financial resources during that period. Being assessed on an income which equates to 21% of the profit of Company A does not seem unfair given Mr W's continuing role in the business, which the tribunal is satisfied was more than that of a mere employee. A ground for departure has therefore not been established.
The applicant argues that given the findings of the Tribunal at [23] and [32] set out above, the profits of Company A were the property of and financial resources belonging to Ms T, who did not have a duty to maintain the applicant’s children. Accordingly, these profits were required to be excluded, unless the Tribunal considered that there were special circumstances of the case by which it was appropriate to have regard to them. He argues that the tribunal made no such finding.
However, this argument cannot be accepted because:
a)the Tribunal found that since 2012 Company A has been a joint enterprise between Ms T and the applicant;
b)the profits of Company A were, accordingly, a financial resource of the applicant’s; and
c)in those circumstances, the Tribunal was not required to consider whether there were special circumstances of the case that warranted the Tribunal having regard to Company A’s profits.
Conclusion
The questions of law raised for consideration by the applicant do not demonstrate that the Tribunal’s decision is affected by any error. The appeal ought to be dismissed with costs fixed in accordance with Division 2 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth), which I assess at $6,948.00.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 5 July 2018.
Date: 5 July 2018
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